United States v. Thompson, Michael E. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3965
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL E. THOMPSON,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 02 CR 35—Sarah Evans Barker, Judge.
____________
ARGUED NOVEMBER 7, 2003—DECIDED FEBRUARY 23, 2004
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Michael Thompson was indicted on
one count of possession of ammunition by a felon, a viola-
tion of 18 U.S.C. § 922(g)(1). During his jury trial, the district
court permitted the prosecution to cross-examine a defense
witness about Mr. Thompson’s past acts of physical violence
and threats. Mr. Thompson was convicted and now appeals
this conviction. He submits that the district court’s eviden-
tiary ruling was error and that 18 U.S.C. § 922(g)(1) is
unconstitutional. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
I
2 No. 02-3965
BACKGROUND
A. Facts
About a week prior to his arrest, Mr. Thompson rented
a Dodge Neon automobile from C.J. Auto Sales. Mr. Thomp-
son and Kimberly Shinnamon, with whom Mr. Thompson
had a romantic relationship, then drove the rental car
throughout southern Indiana. During their travels, both Mr.
Thompson and Shinnamon kept shoes, underwear, jackets
and other clothing in the car. This trip concluded for
Shinnamon on November 20, 2001, when, after an argument
between the two, Mr. Thompson drove away in the rental
car and left Shinnamon behind. At the time they went their
separate ways, their clothing and other belongings remained
intermingled within the automobile.
The following day, Mr. Thompson was arrested in
Indianapolis pursuant to a warrant charging him with an
1
offense against Shinnamon, which had occurred about a
month before. Subsequent to his arrest, Mr. Thompson,
while sitting in the back of an ambulance, asked Detective
Ronald Gray for a drink of water and a jacket. Mr.
Thompson indicated to Detective Gray that the jacket was
in the Dodge Neon which Mr. Thompson had been driving.
Detective Gray testified that, when he went to retrieve the
jacket from the car, he saw only one jacket, a jacket the
officer described as a light-green jacket that would fit a per-
son with a medium to large physique. Prior to handing the
1
Although the details of the warrant are not entirely clear, on
cross-examination at trial Shinnamon testified that the warrant
was issued because Mr. Thompson pointed a firearm at her. The
Government further explained at oral argument that this alter-
cation occurred on October 24, 2001.
No. 02-3965 3
jacket over to Mr. Thompson, the detective checked the
pockets of the light-green jacket and found twelve live
rounds of ammunition.
Detective Michelle Floyd was assigned to this arrest,
and she took custody of the bullets at the scene. However,
the light-green jacket was not seized, photographed or
2
inspected for fingerprints. Detective Floyd performed an
inventory search on the car and found numerous articles of
clothing in the back seat and trunk. The car was then towed
to C.J. Auto Sales.
Shortly after Mr. Thompson’s arrest, Shinnamon told the
police that the light-green jacket and the bullets belonged to
Mr. Thompson. Shinnamon also permitted Detective Floyd
to copy two answering machine messages she had received
from Mr. Thompson after his arrest. One message included
a request by Mr. Thompson that asked Shinnamon to “[g]o
down there and get my clothes for me and my boots and my
three jackets.” Gov’t Ex.8. About a week after Mr. Thomp-
2
Inexplicably, after the bullets were seized the jacket was placed
back into the Neon, and it was not included in Detective Floyd’s
inventory search. Consequently, the jacket was not available as
evidence at trial because the Indianapolis Police Department had
chosen not to seize the jacket. See R.53 at 59. At trial, neither
Detective Gray nor Detective Floyd knew what had happened to
this jacket, nor could they provide relevant details about the
jacket. Compounding this apparent error, as will be discussed
more fully later, Mr. Thompson’s companion, Shinnamon,
changed her version of the events from initially telling police that
the jacket belonged to Mr. Thompson, to testifying that she was
the owner of the jacket and the bullets. The missing jacket became
even more significant in light of this testimony, and the officers
could not provide any detail about the jacket that would have
assisted the fact finder in determining the actual ownership of the
jacket.
4 No. 02-3965
son’s arrest, the police released the car that Mr. Thompson
had rented, and Shinnamon went to C.J. Auto Sales where
3
she picked up the clothes, shoes and jackets from the car.
II
DISCUSSION
A. Evidentiary Ruling
Prior to trial, Mr. Thompson filed a motion in limine
in which he sought to exclude, among other subjects, any
testimony or questioning about certain prior convictions of
Mr. Thompson or about his status as a suspect in any
uncharged crimes. The Government did not object, and the
district court granted the motion.
At trial, Shinnamon testified about the events described
earlier, including her romantic relationship with Mr.
Thompson and their travels together. Shinnamon admitted
on direct examination that she initially had told police that
the jacket and bullets belonged to Mr. Thompson. However,
during her trial testimony, Shinnamon claimed that the
bullets and light-green jacket were hers. R.53 at 97-98.
Shinnamon testified on direct examination that she initially
had not told the police the truth because she was angry with
Mr. Thompson. Defense counsel further inquired:
Q Did you think he would get into trouble?
A I knew he would.
Q Why, because of his prior criminal record?
3
Shinnamon testified that she picked up three or four jackets
that she claims belonged to her and a couple that belonged to Mr.
Thompson. R.53 at 93-94.
No. 02-3965 5
4
A Yes.
Id. at 98. Shinnamon further testified that she had not told
Mr. Thompson before his arrest that she had purchased a
gun or had bullets in her jacket.
After this testimony, but prior to Shinnamon’s cross-
examination, the Government requested that, despite the
earlier ruling prohibiting mention of certain convictions and
past conduct of Mr. Thompson, the Government now be
permitted to raise evidence of past threats and past charges
5
Shinnamon brought against Mr. Thompson.
The Government asserted that it had evidence that Mr.
Thompson threatened Shinnamon and that her direct tes-
timony regarding the light-green jacket and bullets may
have been the product of Mr. Thompson’s threats and in-
timidation. The district court ruled that the proposed cross-
examination was “admissible to [Shinnamon’s] credibility
because if she is testifying under fear, coercion, or intimida-
tion so that it calls into question what she says, the jury is
entitled to make that assessment.” Id. at 101.
On cross-examination, Shinnamon testified about Mr.
Thompson’s guilty plea to domestic battery against her.
Specifically, she testified that Mr. Thompson previously had
been convicted of domestic battery against her; she had suf-
fered a black eye, and Mr. Thompson also had pointed a
4
The defense counsel also asked Shinnamon at the beginning
of her direct examination whether she was “aware Michael
Thompson has a criminal record?” to which Shinnamon re-
sponded in the affirmative. R.53 at 86-87.
5
Specifically, the Government sought relief from paragraph five
of the Motion in Limine, R.53 at 99, a provision restricting the
Government from discussing the “Defendant’s purported status
as a suspect in any other uncharged crimes,” R.23, ¶ 5.
6 No. 02-3965
weapon at her. She further testified that she had provided
police with other weapons that she claimed Mr. Thompson
also had pointed at her. The prosecution also elicited
testimony from Shinnamon that she had permitted the
police to record answering machine messages left by Mr.
Thompson after his arrest. The prosecution stated that, “In
fact, he was threatening you, wasn’t he?”, to which
Shinnamon responded, “Yes.” Id. at 104. However, when
asked by the Government whether “there could be repercus-
sions for you if you don’t sing his line,” in her current
testimony, Shinnamon denied any such fear. Id. Shinnamon
nevertheless testified that, within the last six weeks, friends
of Mr. Thompson’s had come to her house at 3:00 a.m.,
prompting her to call the police.
After Mr. Thompson was convicted, he moved for a new
trial. In Mr. Thompson’s motion for a new trial, he argued
that the Government improperly had elicited testimony
from Shinnamon about his past conviction and conduct. The
district court denied the motion for a new trial.
The district court held that testimony of the threats that
Mr. Thompson allegedly had made against Shinnamon and
testimony about prior charges that she brought against
him did not violate Federal Rule of Evidence 403. The court
reasoned that the evidence offered was admissible as to
Shinnamon’s credibility and could be used to examine
Shinnamon’s possible reason for changing her account of
the events between Mr. Thompson’s arrest and the trial. Id.
at 10. The district court concluded that Shinnamon’s testi-
mony regarding Mr. Thompson’s domestic battery convic-
tion and other threats was relevant and highly probative of
her bias and credibility. The district court further noted that
the Government confined its cross-examination to only the
subjects raised on direct examination. The past threats were
relevant to explain Shinnamon’s possible fear. Furthermore,
No. 02-3965 7
ruled the district court, the evidence of past violence only
was offered after the defense attorney “opened the door to
such testimony.” R.38 at 8. Therefore, continued the court,
the evidence did not produce a risk of prejudice sufficient to
outweigh substantially the testimony’s probative value.
Mr. Thompson now renews his contention that the district
court erred when it allowed the Government, asserting its
intention to impeach the witness by demonstrating her bias,
to cross-examine Shinnamon about Mr. Thompson’s past
acts of physical violence or threats. He relies on our decision
in United States v. Thomas, 86 F.3d 647 (7th Cir. 1996). We
review the district court’s evidentiary rulings under an
abuse of discretion standard. See United States v. Bonner, 302
F.3d 776, 780 (7th Cir. 2002).
The Supreme Court has noted that
[b]ias is a term used in the “common law of evidence”
to describe the relationship between a party and a
witness which might lead the witness to slant, uncon-
sciously or otherwise, his testimony in favor of or
against a party. Bias may be induced by a witness’ like,
dislike, or fear of a party, or by the witness’ self-interest.
Proof of bias is almost always relevant because the jury,
as finder of fact and weigher of credibility, has histori-
cally been entitled to assess all evidence which might
bear on the accuracy and truth of a witness’ testimony.
United States v. Abel, 469 U.S. 45, 52 (1984). “The admissi-
bility of evidence regarding a witness’s bias . . . in his
testimony is not specifically addressed by the Rules and
thus admissibility is limited only by the relevance standard
of Rule 402.” United States v. Lindemann, 85 F.3d 1232, 1243
(7th Cir. 1996) (citing 27 Charles Allen Wright & Victor
James Gold, Federal Practice and Procedure § 6092 (1990)).
8 No. 02-3965
Relevant evidence is, of course, generally admissible, see
Fed. R. Evid. 402, but even relevant evidence will be “ex-
cluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury,” Fed. R. Evid. 403. With respect to the
admission of the evidence in question here, Mr. Thompson
takes the view that, under Rule 403, the danger of unfair
prejudice outweighs any probative value that the evidence
might have. He submits that our decision in Thomas requires
“evidence of threats to be directly and specifically linked to,
and made because of, the witness’ testimony and not” be-
cause of a “general fear of the defendant.” Appellant’s Br.
at 17. Mr. Thompson emphasizes that, prior to admitting
the evidence, the district court failed to make a finding that
the witness was intimidated or threatened. He reasons that,
if a witness does not appear intimidated, or the threat is not
connected directly to the testimony of the witness, “there is
too great a danger that the jury would use that evidence in
a manner prohibited by” Federal Rule of Evidence 404.
Appellant’s Br. at 18. Without a direct connection between
a threat and the witness’ testimony, the prejudicial effect of
the threat evidence will outweigh substantially the proba-
tive value of the evidence. Simply stated, Mr. Thompson
contends that our holding in Thomas requires a “direct
connection between the violence” and Shinnamon’s testi-
mony; otherwise, the threat evidence cannot pass the Rule
6
403 balancing test. Appellant’s Br. at 14.
We cannot agree that there is a general requirement that
the threat of a party must be related specifically to a wit-
ness’ courtroom testimony before such evidence and the
6
Mr. Thompson asserts: “Thomas holds that, in all circumstances,
the prejudicial nature of non-specific threat evidence outweighs
its probative value for purposes of Rule 403 and, thus, is inadmis-
sible.” Appellant’s Br. at 19.
No. 02-3965 9
suggestion of resulting bias can be introduced on cross-
examination. Such a proposition, if accepted, would result
in a significantly higher standard for admitting bias evi-
dence under Rule 403 than is now employed by the courts.
We do not believe that our decision in Thomas supports
Mr. Thompson’s position. In Thomas, the prosecution intro-
duced evidence of a threat toward its own witness in order
to “enhance[] the overall believability of the witnesses by
showing that they testified against the defendants in the
face of threats.” Thomas, 86 F.3d at 654. We held that the
probative value of the threat evidence was “extremely lim-
ited at best” because we could not ascertain “any need for
the introduction of threat evidence to ‘boost’ the testimony
7
of the witnesses.” Id. Therefore, we did not permit the
evidence of threats to “boost” the witness’ testimony be-
cause there was no behavior relevant to credibility that the
Government needed to explain. The threat evidence in
that case was not probative because it was only “admitted
to permit the jury to evaluate fully the general ‘credibility’
7
Notably, the cases cited within Thomas also concern the use of
threats to “boost” or “enhance” the testimony of the witness. See
Dudley v. Duckworth, 854 F.2d 967, 970-71 (7th Cir. 1988) (discuss-
ing direct testimony offered by a prosecution witness and finding
that threats made by the defendant were likely placed before
the jury under a pretext because there was no indication in the
record that the prosecution’s witness was nervous, and, therefore,
there was no need to introduce the evidence on direct examina-
tion other than to prejudice the defendant); Gomez v. Ahitow, 29
F.3d 1128, 1139 (7th Cir. 1994) (distinguishing the decision in
Dudley, the court held that the prosecution was permitted to
bring forth testimony of threats on direct examination to explain
the witness’ delay in providing information to the police because
of her fear of the consequences); United States v. DeLillo, 620 F.2d
939, 945-46 (2d Cir. 1980) (discussing the government’s ability to
introduce evidence of threats to explain contradictory or inconsis-
tent testimony by their witnesses).
10 No. 02-3965
and ‘bias’ ” of the witness. Id. (emphasis added). When a
party wishes to elicit on direct examination testimony about
threats, there must be some specific purpose for introducing
such evidence such as a witness’ “courtroom demeanor
indicating intimidation” or a witness’ delay in testifying. Id.Absent some finding or demonstration that a threat would
explain some “specific behavior of a witness that,
if unexplained, could damage a party’s case,” the evidence
does little, if anything, to demonstrate bias or to inform the
jury’s credibility determination. Id. Evidence of threats to-
ward a witness offered on direct examination to “boost” or
enhance the witness’ credibility therefore should be linked
specifically to a credibility problem; without the link to a
specific credibility issue, the evidence has “extremely limi-
ted probative value.” Id.Evidence of threats on direct examination, admitted even
though the witness shows no indication of intimidation,
is not only of extremely weak probative value, but it also
could constitute a prejudicial attack on the opposing party.
See Dudley v. Duckworth, 854 F.2d 967, 971 (7th Cir. 1988)
(suggesting that the prosecutor introduced the threat to
prejudice the defendants rather than to explain away cred-
ibility problems of the witness). Such evidence can be highly
prejudicial.
The situation is very different when the purpose of in-
troducing evidence of a threat is to demonstrate bias on the
cross-examination of a witness. In such a context, the
8
probative value of such evidence is far more evident. For
instance, evidence of bias, including evidence of a threat, to
8
Cf. United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980)
(“[T]he balance between probativeness and prejudice will differ
according to the purposes for which a piece of evidence is to be
admitted.”).
No. 02-3965 11
challenge the credibility of a witness who has made an
inconsistent statement simply does not raise the same
concerns as evidence of a threat offered, in the absence of a
testimonial inconsistency, simply to “boost” a witness’ tes-
timony. Indeed, Thomas, although noting that the probative
value of the threats was extremely low when there was no
credibility problem to explain on direct examination, also
remarked that, by contrast, threat evidence “can be relevant
to explain a witness’ inconsistent statements.” Thomas, 86
9
F.3d at 654.
In the present case, Shinnamon testified on cross-ex-
amination that Mr. Thompson had pleaded guilty to domes-
10
tic battery against her. Specifically, she stated that he
9
Cf. DeLillo, 620 F.2d at 946. Similarly, a “death threat may be of
very strong probativeness when it is directed against a witness
and what is sought to be proved is that the witness’ testimony
was affected by it; and the prejudice is likely to be small because
the jury will be instructed not to consider the threat on the
question of the defendant’s overall guilt.” Id.10
Q Ms. Shinnamon, you have been the victim of some criminal
conduct by the defendant to which he pled guilty, is that
right?
A Yes.
Q Why don’t you tell us what that was.
THE COURT: Well, establish when it was first. Lay the
foundation.
By MR. MORRISON:
Q Yes. That’s sometime in, I think it was January of this year,
of 2002?
A It was 2001 I believe.
(continued...)
12 No. 02-3965
(...continued)
Q That he pled guilty to domestic batter against you?
A Oh, that may have been when the court was, yes. It hap-
pened a year before that.
Q And it happened the year before, but he plead guilty just this
January?
A Yes.
Q What did that involve, what conduct did that involve?
A We had a fight.
Q But I mean he was physical with you. What did he do? What
is the conduct that he did for which he was convicted?
A He was physical.
Q And by physical, how?
A I had a black eye.
Q And haven’t you made previous records to the police about
him threatening you with weapons? Yes?
A Yes.
Q In fact, the warrant that we have been discussing today
which was served on him on November 21st was as a result
of him pointing a weapon at you; is that correct?
A Yes.
...
Q How many times have you told the police that he’s threat-
ened you with a weapon?
A Twice.
Q In fact, you permitted the detective to copy your answering
machine messages, didn’t you, on your answering machine
of him calling you?
A Yes.
(continued...)
No. 02-3965 13
had threatened her at gunpoint at least twice in the past and
that she had made previous calls to the police about his
behavior. The Government also was permitted to elicit
testimony that Shinnamon allowed a detective to copy an-
swering machine messages that Mr. Thompson left shortly
after he was arrested. Shinnamon admitted that these mes-
sages were threatening.
In ruling on the admission of evidence, the district
court has broad discretion in weighing the probative value
against any potential prejudice. Accordingly, we give that
11
determination great deference. Because the trial court is in
a better position to evaluate both the probative and the
prejudicial impact of evidence, “a reviewing court will not
lightly overturn the trial court’s assessment.” United States
v. Peters, 791 F.2d 1270, 1295 (7th Cir. 1986), superseded by
statute on other grounds as stated in United States v. Guerrero,
894 F.2d 261, 267 (7th Cir. 1990).
(...continued)
Q And some of the things he was saying to you wasn’t very
pretty, was it?
A No.
Q In fact, he was threatening you, wasn’t he?
A Yes.
Q. And today you are sitting here, knowing that there could be
repercussions for you if you don’t sing his line, isn’t that
true?
A No.
R.53 at 102-05.
11
See United States v. Falco, 727 F.2d 659, 665 (7th Cir. 1984);
United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978).
14 No. 02-3965
Despite Mr. Thompson’s assertions demanding a “specific
link” between the threat and the witness’ testimony, our
precedent instructs that “evidence of threats is subject to the
same Rule 403 balancing test as other relevant evidence.”
Thomas, 86 F.3d at 653 (quoting United States v. Qamar, 671
12
F.2d 732, 736 (2d Cir. 1982)). The Government attempted
to demonstrate that Shinnamon’s fear of the defendant was
a motivating force in her accepting responsibility for the
bullets, testimony that differed from her initial account. In
contrast to Thomas, the Government presented this evidence
of Shinnamon’s possible fear of Mr. Thompson in order to
13
address specifically Shinnamon’s inconsistent statements.
12
The court in United States v. Manske, 186 F.3d 770 (7th Cir.
1999), explained that there is no special foundational requirement
for bias evidence and the party attempting to demonstrate bias
should be able to prove any fact logically relevant to bias. See id.
at 779 (quoting Edward J. Imwinkelreid, Evidentiary Foundations,
164 (4th ed. 1998)). “Thus, the only necessary questions the
defendant need ask are the who, what, why, where and when of
the specific incidents he claims give rise to bias.” Id. (internal
citations omitted). The court determined that the defendant did
not need to ask explicitly whether the witness was “presently
afraid” or whether the witness felt “pressured to testify a certain
way.” Id.13
As the Supreme Court has explained, bias may be induced by
the witness’ like, dislike or fear of a party, and these feelings
toward a party may lead a witness to consciously or uncon-
sciously slant their testimony. United States v. Abel, 469 U.S. 45, 52
(1984) (noting that bias describes “the relationship between a
party and a witness which might lead the witness to slant, un-
consciously or otherwise, his testimony in favor of or against
a party”). By this proposition alone, it is evident that bias can
spring from the general fear of a witness or the witness’ “re-
(continued...)
No. 02-3965 15
Furthermore, Shinnamon’s testimony regarding the owner-
ship of the jacket was crucial. The defense theory rested on
Shinnamon’s testimony asserting her sole ownership of the
bullets and Mr. Thompson’s assertion that he had no
knowledge of the bullets. The question of whether the jury
believed Shinnamon’s initial report to the police or her
subsequent trial testimony was central to the jury’s determi-
nation of whether Mr. Thompson possessed the bullets for
which he was charged. See Qamar, 671 F.2d at 736 (noting
credibility was “central to the jury’s determination” when
holding that admission of threat evidence was permissible
over a Rule 403 objection). The members of the jury had to
decide whether they believed the prior statement or
Shinnamon’s in-court testimony. It is also significant that
the prosecution connected the previous violence and threats
to what Shinnamon conceded was a “threatening” message
left by Mr. Thompson after he was arrested on the current §
922(g) charge. R.53 at 104. “[A]s finder of fact and weigher
of credibility, [a jury] has historically been entitled to assess
all evidence which might bear on the accuracy and truth of a
witness’ testimony.” Abel, 469 U.S. at 52. Questioning a wit-
ness’ motives for testifying is precisely the type of inquiry
permissible on cross-examination. See United States v.
Manske, 186 F.3d 770, 777 (7th Cir. 1999) (concluding that
attacking a witness’ credibility with evidence of bias “is the
‘quintessentially appropriate topic for cross-examination’ ”
(quoting Bachenski v. Malnati, 11 F.3d 1371, 1375 (7th Cir.
1993))). The district court did not abuse its broad discretion
(...continued)
lationship” to the party, and the demonstration of bias does not
require automatically the cross-examiner to produce a specific
threat against the witness’ testimony before demonstrating bias
that is caused by fear.
16 No. 02-3965
in concluding that the evidence of threats and recent vio-
lence were probative of Shinnamon’s credibility and bias.
When admitted on cross-examination, this evidence of
recent threats and violence was relevant and probative to
demonstrate that Shinnamon, a witness who changed her
pretrial testimony, was biased and therefore likely to slant
or even fabricate her testimony in the defendant’s favor.
Rule 403 also requires the district court to determine
whether any danger of unfair prejudice substantially out-
weighs the probative value of the evidence at issue. It is not
sufficient to find that the evidence is simply prejudicial
because, as we have remarked in the past, all probative
evidence is prejudicial to the party against whom it is of-
14
fered. Rather, the relevant inquiry is whether there was
unfair prejudice from the introduction of Mr. Thompson’s
past violence toward Shinnamon. “Evidence is ‘unfairly
prejudicial if it appeals to the jury’s sympathies, arouses its
sense of horror, provokes its instinct to punish, or otherwise
may cause a jury to base its decision on something other
than the established propositions in the case.’ ” Peters, 791
F.2d at 1294 (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d
Cir. 1980) (internal citations omitted)); see also Adames, 56
F.3d 737, 742 (7th Cir. 1995) (upholding the trial court’s
admission of evidence because the evidence was not
“shocking or repulsive, such as to elicit an emotional re-
sponse from the jury”).
The defense first called Shinnamon as a witness; the
defense also first referred to the defendant’s prior criminal
history, asking Shinnamon twice whether she was aware
15
that Mr. Thompson had a criminal record. The defense
found it advantageous to use Shinnamon’s knowledge of
14
See, e.g., United States v. Adames, 56 F.3d 737, 742 (7th Cir. 1995).
15
See supra note 4 and accompanying text.
No. 02-3965 17
that past criminal record to explain her motivation to lie
initially to the police. The prosecution then attempted to
demonstrate why Shinnamon’s first statement was the more
credible of the two. In order to establish that Shinnamon
had reason to fear the defendant, the prosecution cross-
examined her about the threats and about the nature of her
relationship with Mr. Thompson. We note that the prosecu-
tion was careful to limit its cross-examination to questions
about the defendant’s violence toward Shinnamon. Notably,
the Government did not ask Shinnamon other questions
concerning Mr. Thompson’s extensive criminal record.
Because the questions on cross-examination regarding
past violence were probative of the witness’ bias and mo-
tives to testify, it was not an abuse of discretion for the
district court to determine that the danger of unfair preju-
dice from that evidence did not substantially outweigh its
probative value.
B. Constitutionality of § 922(g)
Before trial, Mr. Thompson moved to dismiss the in-
dictment on the ground that 18 U.S.C. § 922(g) exceeded
Congress’ power under the Constitution. The district court,
relying on this court’s decision in United States v. Wesela, 223
F.3d 656, 659-60 (7th Cir. 2000), denied Mr. Thompson’s mo-
tion. In Mr. Thompson’s motion for acquittal, he again
argued that “the government failed to establish the ‘in or
affecting commerce’ element of 18 U.S.C. § 922(g).” R.34,
¶ 2. The district court rejected this argument and further
18 No. 02-3965
16
concluded that the Government’s evidence at trial was
sufficient to support the jury’s verdict. R.38 at 1 n.1.
Mr. Thompson now contends that his possession of the
twelve rounds of ammunition did not affect interstate com-
merce and therefore 18 U.S.C. § 922(g)(1) exceeds Congress’
power and is unconstitutional. Mr. Thompson concedes that
“this issue has been decided against him.” Appellant’s Br.
at 23 (citing Scarborough v. United States, 431 U.S. 563 (1977),
and United States v. Harris, 325 F.3d 865, 873-74 (7th Cir.
2003)). He finally asserts that the Supreme Court in United
States v. Lopez, 514 U.S. 549 (1995), employed language that
indicates that his possession of the ammunition was not
economic activity that affects interstate commerce. Mr.
Thompson, however, continues to “raise[] this issue so he
may preserve his rights if the Supreme Court decides to
revisit” its earlier decision. Appellant’s Br. at 23.
We agree with Mr. Thompson that the issue of whether
18 U.S.C. § 922(g)(1) exceeds Congress’ power to regulate
interstate commerce has been decided against him. Indeed,
we have considered and rejected the issue of whether the
Supreme Court’s holding in Lopez renders the statute un-
constitutional. See, e.g., United States v. Fleischli, 305 F.3d 643,
653 (7th Cir. 2002) (rejecting a similar commerce clause
argument based on Jones v. United States, 529 U.S. 898(2000)); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.
2002) (rejecting similar argument based on Lopez); United
16
During the trial, the Government called Patrick Donovan, an
A.T.F. firearms crime analyst, to testify. Mr. Donovan stated that
six of the rounds found in the pocket of the light-green jacket
were from a manufacturer in Minnesota, and six of the rounds
were from a manufacturer in Idaho. R.53 at 69, 71-72. Therefore,
Mr. Donovan concluded that the ammunition must have moved
in interstate commerce by virtue of their presence in Indiana.
No. 02-3965 19
States v. Mitchell, 299 F.3d 632, 633-35 (7th Cir. 2002) (reject-
ing commerce clause argument based on Lopez, Morrison v.
United States, 529 U.S. 598 (2000), and Jones); United States v.
Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000) (same); United
States v. Williams, 128 F.3d 1128, 1133-34 (7th Cir. 1997)
17
(rejecting commerce clause challenge based on Lopez).
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
17
In the present case, the ammunition was manufactured in
Minnesota and Idaho. Mr. Thompson possessed it in Indiana.
Prior movement across state lines is sufficient to satisfy the in-
terstate commerce clause requirement. See United States v. Lemons,
302 F.3d 769, 772 (7th Cir. 2002).
USCA-02-C-0072—2-23-04